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NOTE
THE ROOT OF ALL EVIL: EXPANDING CRIMINAL
LIABILITY FOR PROVIDING MATERIAL
SUPPORT TO TERROR
James J. Ward*
INTRODUCTION
In the years since the United States announced the War on Terror, the federal government has attempted to curb international terrorist activities through a variety of means. In Afghanistan, the United
States collaborated with a coalition of western and central Asian states
to topple the Taliban regime through direct military action.1 The war
in Iraq has taken on its own impetus outside of any original justification, namely the eradication of al Qaeda in Iraq (AQI) and avoiding
the establishment of a terrorist proxy state controlled by Iran.2 In
Europe, intelligence-sharing programs create a web of electronic and
direct surveillance of suspected terrorists before they can implement
their attack plans.3 Even congressional counterterrorist plans have a
* Candidate for Juris Doctor, Notre Dame Law School, 2009; B.A., American
Studies, Northwestern University, 2006. I wish to thank Professor Gurulé for his
guidance and insight. This Note is dedicated in filial affection and gratitude to my
mother, Clare. AMDG.
1 See, e.g., Eric Schmitt, Many Eager to Help, but Few Are Chosen, N.Y. TIMES, Nov.
30, 2001, at B3.
2 See Bruce Riedel, Al Qaeda Strikes Back, FOREIGN AFF., May/June 2007, at 24,
26–28.
3 See Press Release, U.S. Dep’t of State, U.S., Europol Sign Supplemental Intelligence-Sharing Agreement (Dec. 23, 2002), available at http://usinfo.state.gov/
xarchives/display.html?p=washfile-english&y=2002&m=December&x=200212231511
[email protected] (describing the intelligence sharing program
between the United States and Europol, the EU criminal intelligence agency).
471
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decidedly global scope, focusing on secure borders and effective early
warning systems to keep terrorists out of the United States.4
While the broadsword of military action or the scalpel of covert
intelligence each aims at excising the same danger, the banker’s pen
may be mightier. As one court noted, the instruments of terror do
not exist by themselves, but rather because of the financial support
provided to extremists.5 To attack the financial roots of terror, Congress enacted prohibitions on “providing material support to terrorists.”6 Congress defines material support as knowingly conveying
support, aid, or anything of value to a terrorist or terrorist organization.7 The language of these provisions lends itself to prosecutorial
discretion as to which groups to prosecute and what penalty to
pursue.8
The government’s record in securing convictions under these
laws is inconsistent, at best. While “providing material support” was
the lead charge in 162 federal prosecutions between 2001 and 2006, it
was the lead count in convictions only eight times.9 The acquittals are
more troubling. For example, the government charged Muhammad
Hamid Khalil Salah with channeling millions of dollars to Hamas, a
Palestinian terrorist group.10 Despite evidence that Salah once moved
$985,000 in a single transaction,11 the government accepted his plea
of guilty to simple fraud. U.S. Attorney Patrick J. Fitzgerald declared
4 See infra Part III.A.
5 See Humanitarian Law Project v. Reno (Humanitarian Law Project II), 205 F.3d
1130, 1135 (9th Cir. 2000) (explaining the connection between funding and acts of
terrorism).
6 18 U.S.C. §§ 2339A–2339C (2006).
7 See id. § 2339A(b)(1) (“[T]he term ‘material support or resources’ means any
property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious
materials . . . .”).
8 For example, the prescribed maximum term of imprisonment for providing
material support is fifteen years, but “if the death of any person results,” the penalty is
increased to life. Id. § 2339A(a); see also id. § 2339B(a)(1) (providing the same
penalties).
9 Transactional Records Access Clearinghouse, Criminal Terrorism Enforcement in the United States During the Five Years Since the 9/11/01 Attacks (2006),
http://trac.syr.edu/tracreports/terrorism/169 [hereinafter TRAC Report].
10 See Second Superseding Indictment at 3–4, United States v. Marzook, 462 F.
Supp. 2d 915 (N.D. Ill. 2006) (No. 03 CR978), 2003 WL 25714791.
11 Id. at 22–23.
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the plea as a victory against fraud, but skirted questions of terrorism.12
In another case from the Northern District of Illinois, United States v.
Arnaout,13 the government accepted a guilty plea to a single count of
racketeering from a man initially charged with laundering money and
goods to Chechnyan and Bosnian terrorists.14 In this case, Fitzgerald
stated that the presiding judge felt that the government “failed to connect the dots”—undoubtedly shorthand for failure to establish the
links between Arnaout and terror.15
The problem extends beyond trials in Chicago. Indeed, a jury
imposed civil damages of $52 million on Salah based on his connections to Hamas in the same court where the government could not
secure a criminal conviction.16 Despite this finding of liability, a jury
in Houston found the government’s case against the organization that
acted as the conduit for some of Salah’s transactions too weak to sustain a conviction.17 In the Middle District of Florida, a judge determined that “providing material support” requires a specific purpose to
further the ends of terrorism, despite the clear language of the material support statutes and the purpose of Congress.18
A potential explanation for these failures is that the statutes are
insufficiently clear, and insufficiently broad. Sections 2339A–C of
Title 18 have a confusing and counterproductive mens rea requirement19 that can be clarified and widened to capture more donative
activity. Rather than forcing prosecutors to prove that a defendant
12 See Press Release, U.S. Dep’t of Justice, Benevolence Director Pleads Guilty to
Racketeering and Conspiracy and Agrees to Cooperate with the Government (Feb.
10, 2002), available at http://www.usdoj.gov/usao/iln/pr/chicago/2003/pr021003_
01.pdf.
13 282 F. Supp. 2d 838 (N.D. Ill. 2003).
14 See Plea Agreement at 2–4, United States v. Arnaout, 282 F. Supp. 2d 838 (N.D.
Ill. 2003) (No. 02 CR 892), 2003 WL 25582843; see also Second Superseding Indictment at 8–18, United States v. Arnaout, 282 F. Supp. 2d 838 (N.D. Ill. 2003) (No. 02
CR 892), 2003 WL 25584155 (explaining the original charges against Arnaout).
15 See Peter Slevin, The Prosecutor Never Rests, WASH. POST, Feb. 2, 2005, at C1.
16 See Boim v. Quranic Literacy Inst., 340 F. Supp. 2d 885, 931 (N.D. Ill. 2004)
(granting the Boim family partial summary judgment and ordering the case to proceed to the civil liability phase), vacated sub nom. Boim v. Holy Land Found. for Relief
and Dev., 511 F.3d 707, 710 (7th Cir. 2007). The Seventh Circuit opinion was subsequently vacated after a rehearing en banc. See 511 F.3d at 710.
17 See infra notes 75–101 and accompanying text.
18 United States v. al-Arian, 329 F. Supp. 2d 1294, 1299–1303 (M.D. Fla. 2004).
19 See 18 U.S.C. § 2339A (2006) (criminalizing provision of material support to
any person with knowledge that the person is preparing to engage in certain enumerated federal crimes); id. § 2339B (criminalizing the provision of material support to
designated Foreign Terrorist Organizations, or groups that in engage in terror, knowing that they are so designated or that they so behave); id. § 2339C (criminalizing
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had actual knowledge that a recipient of aid was a terrorist group, the
statutes should promote responsible giving by forbidding reckless
donations. The material support provisions also target Foreign Terrorist Organizations (FTOs),20 groups outside the United States,21 or
individuals who seek to commit specified acts of terrorism.22 Inexplicably, the statutes make no mention of funding to terrorists without
any international connections. This “it can’t happen here” mentality
towards domestic terrorism reflects the frightening concept that we
have not learned the lessons of Pearl Harbor, the Oklahoma City
bombing, or September 11, namely that the oceans do not insulate us,
and that it indeed can “happen here”—and it has.23
Rather than continuing to play the passive waiting game, Congress should move first. The means are available to address the problem. Initially, the present mens rea requirement for crimes in § 2339
requires prosecutors to prove that the defendant knowingly provided
material support to a terrorist or terror group.24 Precisely what constitutes culpability under the statutes has generated some judicial disagreement25 and ample scholarly discussion.26 Congress can speak
provision or collection of funds with knowledge that they will be used to commit
terrorist acts).
20 See id. § 2339B(a).
21 See id. § 2339B(b); see also id. § 2339C(d)(1) (providing extraterritorial jurisdiction only in cases where the recipient of funds was either a U.S. citizen who committed a terrorist act abroad or a foreigner who committed a terrorist act in the
United States). There is no § 2339C liability for providing funds to an American terror group that commits terrorism in the United States.
22 See id. § 2339A(a) (listing predicate offenses).
23 The danger lies also in the mischaracterization of terrorism as coming from
foreigners (as in September 11) and antigovernment or radical environmentalists at
home. This view ignores the threat of homegrown Islamic extremism. See, e.g., Larry
Copeland, Domestic Terrorism: New Trouble at Home, USA TODAY, Nov. 15, 2004, at A1
(quoting U.S. Marshals Chief Inspector Geoff Shank that counterterrorism experts
are “concerned about the guy in a turban. But there are still plenty of angry, Midwestern white guys out there” (emphasis added)); see also infra Part III.
24 See 18 U.S.C. § 2339A(a); id. § 2339B(b).
25 Most courts contend that there is no “purpose to further the terrorist act”
requirement under the statutes. Nevertheless, the Middle District of Florida disagreed in 2004, and imposed a knowledge mens rea requirement. Compare United
States v. al-Arian, 329 F. Supp. 2d 1294, 1300 (M.D. Fla. 2004) (requiring purpose to
further terrorism in order to sustain a material support conviction), with Humanitarian Law Project II, 205 F.3d 1130, 1133–36 (9th Cir. 2000) (imposing liability for any
contribution regardless of purpose).
26 See generally Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and
the Demands of Prevention, 42 HARV. J. ON LEGIS. 1, 11–18 (2005); Randolph N. Jonakait,
The Mens Rea for the Crime of Providing Material Resources to a Foreign Terrorist Organization, 56 BAYLOR L. REV. 861 (2004); David Henrik Pendle, Comment, Charity of the
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clearly and with finality by establishing reckless knowledge—without
any purpose to aid terrorism—as the state of mind requirement for
foreign contributions.27 While there are due process and expressive
association issues raised by such a change, proper statutory drafting
and incorporation of current case law alleviates those concerns.28
In addition, Congress should create a new species of material support crimes for domestic terrorism. By widening the scope of § 2339B
to include “homegrown” terror groups, legislators will equip U.S.
Attorneys with the tools to target terror cells with no discernible connection to international terrorism. Further, including fundraising
groups and “clearinghouses” that amass funds under the guise of legitimate activity provides the means to separate protected speech and
illegal support for terror. Like its foreign counterpart, a domestic
material support statute survives constitutional scrutiny, as it imposes
liability for conduct, not speech, or “mere association.”29 Because
there is no constitutional infirmity in either the foreign or the domestic context, this proposed statute requires that the defendant recklessly contribute to a person or group that committed, planned,
conspired, or attempted to commit terrorist activities in the United
States.
Part I of this Note examines the origin of the material support
statutes and their current interpretation in the leading series of cases
addressing them, before examining some of their weaknesses. Part II
advances the recklessness mens rea for material support crimes and
addresses constitutional considerations. Part III explores the nascent
homegrown terrorism movement in the United States, and how the
current statutes fail to provide sufficient criminal liability in the
domestic context. Finally, Part IV outlines a domestic material support statute for the United States.
Heart and Sword: The Material Support Offense and Personal Guilt, 30 SEATTLE U. L. REV.
777 (2007).
27 This Note uses the word “purpose” to describe a defendant’s aim, rather than
the vague “intent.”
28 The constitutional elements of these statutes are addressed infra Part II.B. For
a good example of the mischief caused by imprecision in criminal statutes, see
Liparota v. United States, 471 U.S. 419, 424–30 (1985), where congressional intent and
language permitted two radically different interpretations of a crime relating
improper possession of food stamps.
29 See Humanitarian Law Project II, 205 F.3d at 1133–36.
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CRIMINAL LIABILITY UNDER
THE
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CURRENT CODE30
Provision of support to terrorists has long been a crime under
U.S. law, but often within the framework of trade with the enemy during wartime.31 By the late twentieth century, geopolitical changes
prompted the federal government to address terrorism as a distinct
activity.32 Congress enacted the modern antiterrorist statutes in
1986,33 initially as a measure to improve security at American diplomatic missions abroad.34 House Speaker Thomas P. “Tip” O’Neill
remarked in a letter to the Chairman of the House Foreign Relations
Committee that “[l]egislation addressing the problem of terrorism is a
top priority this year,” and that Congress should create an omnibus
committee.35 With the end of the Cold War, the general terrorism
provisions36 underwent repeated amendment, usually to increase
penalties.37
The Violent Crime Control and Law Enforcement Act of 199438
was Congress’s first major step towards creating liability for support,
30 As with all criminal statutes, these statutes incorporate the notion that criminal
liability is normally based upon the concurrence of two factors, “an evil-meaning
mind . . . [and] an evil-doing hand.” Morissette v. United States, 342 U.S. 246, 251
(1952).
31 Chesney, supra note 26, at 4 (noting that this practice has roots in “the earliest
days of the republic”).
32 See id. at 4–18 (describing the development of antiterror laws and the role of
material support provisions).
33 See Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No.
99-399, § 1202(a), 100 Stat. 853, 896 (codified as amended at 18 U.S.C. §§ 2331–2332
(2006)). Congress enacted this new law in the shadow of the attack on Marine Barracks Lebanon that year and the siege of the American Embassy in Tehran that ended
just five years earlier.
34 See id. § 102(b)(1)–(5), 100 Stat. 853, 855 (codified at 22 U.S.C. § 4801
(2006)) (setting out the purposes of the bill as primarily aimed at improving security
at United States diplomatic posts abroad).
35 H.R. REP. NO. 99-494, pt. 2, at 1872 (1986).
36 The terrorism provisions of the United States Code are set out in Chapter
113B, or 18 U.S.C. §§ 2331–2339D (2006).
37 E.g., Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (codified in scattered sections of 18 U.S.C.) (increasing
penalties for most terrorist offenses from five years’ imprisonment to ten or fifteen
years’ imprisonment). This trend has not subsided, as several Chapter 113B provisions have pending amendments raising the penalty from fifteen years to forty. See,
e.g., H.R. 3156, 110th Cong. § 614 (2007); Terrorism Prevention and Deterrence Act
of 2007, S. 1320, 110th Cong (2007).
38 Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections
of 8, 16, 18, 28, 42 U.S.C.).
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rather than commission, of a terrorist act.39 Just two years later, and
in the shadow of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA).40 Finally, the Suppression of the
Financing of Terrorism Convention Implementation Act of 2002 widened the scope of antifinancing crimes to include those who “provide[] or collect[] funds” for terrorism.41 These three statutes,
codified in Title 18 of the U.S. Code at §§ 2339A–2339C, respectively,
constitute the American effort at curbing material support for
terror.42
Each of the material support crimes targets different behavior.
Section 2339A punishes anyone who “provides material support or
resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that
they are to be used in preparation for, or in carrying out” specified
federal offenses.43 This section aims at the perpetrators of terrorist
offenses and those who directly support them. It also reflects the earlier focus of antiterrorism efforts on large-scale attacks, like trainwrecking or presidential assassinations.44
Sections 2339B and 2339C embody a different approach to
antiterrorism: attacking the financial roots of terror. Section 2339B
prohibits “knowingly provid[ing] material support or resources to a
foreign terrorist organization.”45 This seemingly straightforward statute has faced a great deal of scrutiny and various revisions in recent
years.46 The generally accepted interpretation of the statute is that
any person who contributes to a foreign terror group—whether the
39 See id. § 120005, 108 Stat. 1796, 2022–23 (codified as amended at 18 U.S.C.
§ 2339A (2006)) (establishing penalties for providing material support to terror).
40 Pub. L. No. 104-132, § 303(a), 110 Stat. 1214, 1250 (codified as amended at 18
U.S.C. § 2339B (2006)).
41 Pub. L. No. 107-197, § 202(a), 116 Stat. 721, 724 (codified as amended at 18
U.S.C. § 2339C (2006)).
42 For convenience, I will refer to all three collectively as the “material support
statutes.”
43 18 U.S.C. § 2339A(a). Predicate acts under § 2339A(a) include destruction of
an aircraft or airport facilities (id. § 32), hostage-taking (id. § 1203), conspiracies to
injure, maim or kill persons abroad (id. § 956), and wrecking trains (id. § 1992). Id.
§ 2339A(a).
44 This focus is not without basis in experience. Al Qaeda’s modus operandi gravitates toward the dramatic (the simultaneous attacks on September 11, the coordinated African Embassy bombings in 1996, the Khobar Towers attack). See LAWRENCE
WRIGHT, THE LOOMING TOWER 307 (2007) (noting that highly visible, large-scale
attacks would become a hallmark of al Qaeda operations).
45 18 U.S.C. § 2339B(a)(1).
46 See infra notes 51–74 and accompanying text.
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group is so designated by the United States government or, when not
designated, if it engages in terrorism—commits an offense under
§ 2339B. “Material support” means funds, equipment, materiel, information, expertise, or any item or good that would aid the terror
group’s enterprise, except for religious or medical items.47
Congress enacted § 2339C in compliance with the International
Convention for the Suppression of the Financing of Terrorism.48 The
statutory language tracks the Convention’s provision that forbids any
person from, “by any means, directly or indirectly, unlawfully and willfully, provid[ing] or collect[ing] funds with the intention that they
should be used or in the knowledge that they are to be used, in full or
in part, in order to carry out” terrorist acts.49
After the September 11 attacks, prosecutorial use of the material
support statutes increased exponentially.50 This surge in indictments
forced the latent issue of what Congress meant by “knowingly provides
material support or resources to a foreign terrorist organization.”51
The Humanitarian Law Project cases in the Ninth Circuit provided
answers to this question in the most widely accepted interpretation of
the statutes. In one of the cases in the series, Humanitarian Law Project
v. United States Department of Justice (Humanitarian Law Project III),52 the
Ninth Circuit noted that there were three potential interpretations of
the statute’s language. The government’s preferred interpretation
promoted a strict liability reading of § 2339B, limiting the knowledge
requirement to the act of donation.53 A literal construction of the
statute could hold that the statute required both knowledge of the
donation and knowledge that the donee was a designated FTO. Opt47 18 U.S.C. § 2339B(g)(4) (employing the definition of material support found
at id. § 2339A(b)(1)–(b)(3)).
48 Pub. L. No. 107-197, 116 Stat 721, 721 (codified at 18 U.S.C. § 2339C note);
International Convention for the Suppression of the Financing of Terrorism, Dec. 9,
1999, 39 I.L.M. 270 [hereinafter International Convention].
49 International Convention, supra note 48.
50 TRAC Report, supra note 9.
51 18 U.S.C. § 2339B(a). Additionally, the designation process whereby a group
is declared an FTO came under scrutiny in People’s Mojahedin Organization of Iran v.
United States Department of State, 182 F.3d 17, 23–25 (D.C. Cir. 1999) and National Council of Resistance of Iran v. United States Department of State, 251 F.3d 192, 203–09 (D.C.
Cir. 2001). Each of these cases upheld the designation process as a valid exercise of
executive authority, and precluded any due process claims on that basis. See People’s
Mojahedin Org. of Iran, 182 F.3d at 22–25 (refusing to provide judicial review of the
designation process); Nat’l Council of Resistance of Iran, 251 F.3d at 205–09 (finding no
due process violation in the designation process).
52 352 F.3d 382 (9th Cir. 2003), vacated, 393 F.3d 902 (9th Cir. 2004).
53 See id. at 400.
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ing for neither view, the court interpreted § 2339B to require knowledge that a donation was made, and knowledge that the donee was
either a designated FTO or a group that engaged in terrorism.54
Humanitarian Law Project III’s predecessor case, Humanitarian
Law Project v. Reno (Humanitarian Law Project II),55 addressed the lurking First Amendment issue surrounding expressive association. The
defendants contended that AEDPA impermissibly precluded them
from supporting an organization or engaging in advocacy.56 They
claimed that they were entitled to promote the positions of the
Humanitarian Law Project.57 Circuit Judge Alex Kozinski dispensed
with their argument, noting that “advocacy is far different from making donations of material support.”58 Thus, while an individual may
support the politics and methods of an international terrorist group,
they may not provide the group with “the weapons and explosives with
which to carry out their grisly missions.”59
A. Problems Under the Current Scheme
Most courts have followed the Humanitarian Law Project III standard and found liability where an individual contributor knew that the
donee was either a designated FTO or that it engaged in terrorist
activities.60 Other jurisdictions have been similarly receptive to the
Humanitarian Law Project II pronouncements on nonprotected donations and use of intermediate constitutional scrutiny.61
54 See id. at 402–03.
55 205 F.3d 1130 (9th Cir. 2000).
56 See id. at 1133.
57 See id.
58 Id. at 1134.
59 Id. at 1133. The interaction between material support and expressive association is discussed further infra Part II.
60 See, e.g., United States v. Abdi, 498 F. Supp. 2d 1048, 1060–61 (S.D. Ohio
2007); United States v. Marzook, 383 F. Supp. 2d 1056, 1069 (N.D. Ill. 2005); United
States v. Paracha, No. 03 CR. 1197(SHS), 2006 WL 12768, at *23–26 (S.D.N.Y. Jan. 3,
2006), aff’d, No. 06-3599-Cr., 2008 WL 2477392 (2d Cir. June 19, 2008). Indeed, all
but the “aberrant” United States v. al-Arian, 329 F. Supp. 2d 1294, 1300 (M.D. Fla.
2004), apply the Humanitarian Law Project II and III standards for mens rea. While
most commentators and courts suggest that congressional action and the Humanitarian Law Project cases mooted al-Arian, it remains good law in the Middle District of
Florida. See Humanitarian Law Project v. Gonzales (Humanitarian Law Project V), 380
F. Supp. 2d 1134, 1147 (C.D. Cal. 2005) (reading congressional action subsequent to
the decision al-Arian as rendering that case moot).
61 See, e.g., Abdi, 498 F. Supp. 2d at 1059–64 (citing with approval Humanitarian
Law Project II on matters of constitutional sufficiency and statutory interpretation).
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This approbation ignores very real problems in the Ninth Circuit’s statutory interpretation.62 As one commenter recently noted,
the Court “fashioned a mental element that cannot be derived from
the statute’s language.”63 Humanitarian Law Project II purports to
apply Congress’ intent by splitting the difference between the contentions of the defendants and the government. Nevertheless, the
Humanitarian Law Project II decision created a definition of “knowledge” distinct from either of the plain readings of the text. Up to that
point, neither the language of the statute nor the legislative history
pointed to the interpretation employed by the court.64 Despite a
lengthy analysis of Supreme Court precedent on statutory interpretation,65 the Ninth Circuit followed its own course and engaged in some
Solomonic difference splitting.
The Humanitarian Law Project III court ignored the canon of
interpretation that “ambiguity concerning the ambit of criminal statutes . . . [should] be resolved in favor of lenity.”66 Had the court
applied lenity—and proper grammar—the appropriate reading would
have been that “knowingly” was an adjunct, and thus modified the
entire sentence as written, or at least those parts of the statute affecting potentially innocent conduct.67 Under that view, “knowingly providing material support” means that the defendant would have
needed knowledge of the contribution and knowledge that the group
was a designated FTO. Instead, the court permitted conviction if the
defendant knew of the designation or “of the organization’s unlawful
activities that caused it to be so designated.”68
62 First and Fifth Amendment issues raised by the material support statutes are
addressed infra Part II, where I discuss the constitutional sufficiency of my proposals.
63 Jonakait, supra note 26, at 878.
64 See id. at 879–81.
65 See Humanitarian Law Project III, 352 F.3d 382, 397–402 (9th Cir. 2003), vacated,
393 F.3d 902 (9th Cir. 2004) (citing United States v. X–Citement Video, 513 U.S. 64,
69 (1994); Liparota v. United States, 471 U.S. 419, 426 (1985); Morissette v. United
States, 342 U.S. 246, 251 (1952), vacated, 393 F.3d 902 (9th Cir. 2004).
66 United States v. Yermian, 468 U.S. 63, 77 (1984) (Rehnquist, J., dissenting)
(quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).
67 See id.
68 Humanitarian Law Project III, 352 F.3d at 403. Professor Jonakait compellingly
outlines the flaws in this judicial interpretation of the statute. For example, “[t]aken
on its face [the decision] requires knowledge that could never be proved” because
knowledge of the reasons for designation are entirely at the discretion of the Secretary of State, unknown to anyone outside “the inner counsels of the State Department.” Jonakait, supra note 26, at 879–83.
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Before the entire Circuit could review this position en banc,69
Congress performed a legislative deus ex machina. Passage of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 200470—
which adopted the language of Humanitarian Law Project III—legitimated convictions where the defendant knew of terrorist activities, but
not of an FTO designation.71 The en banc panel took its cue from
Congress and declined to hear oral arguments on the mens rea portion of the prior decisions.72
Relying on the Humanitarian Law Project series of cases, most
courts have avoided serious constitutional quandaries in material support prosecution.73 The Humanitarian Law Project saga, then, is worthy
of attention if for no other reason than that it highlights the relative
dearth of juridical analysis on the material support statutes, which are
among the most common lead charges in terrorism indictments since
September 11.74 It is time for closer scrutiny of—with an eye towards
improving—the criminal code.
II. CHANGES
TO THE
MATERIAL SUPPORT STATUTES
The material support statutes, while potentially useful tools, need
improvement. The knowledge prong alone provides an excellent
starting point for the changes to be made to §§ 2339A–C. The knowledge prongs of each section substantively state and prohibit the same
thing: any contribution to a person or group that the defendant
knows is a terrorist organization or commits terrorist acts. If Congress
changed the requisite mens rea from knowledge—a mens rea that is
confusing, but agreed upon—to recklessness, it would significantly
increase the odds of securing convictions. As it stands, several scenarios exist that illustrate the deficiencies in the current standard.
A prime example of the flaw in requiring actual knowledge that a
donee organization actually engages in terrorism is the government’s
case against the Holy Land Foundation for Relief and Development
69 See Humanitarian Law Project v. U.S. Dep’t of State (Humanitarian Law Project
IV), 382 F.3d 1154, 1555 (9th Cir. 2004) (granting rehearing en banc).
70 Intelligence Reform and Terrorism Prevention Act, Pub. L. No. 108-458, 118
Stat. 3638 (codified as amended in scattered sections of 3, 5, 6, 8, 12, 18, 22, 28, 31,
42, 46, 49, 50 U.S.C.).
71 Id. § 6603(c)(2), 18 U.S.C. 2332b (2006).
72 See Humanitarian Law Project V, 380 F. Supp. 2d 1134, 1138 (C.D. Cal. 2005).
73 See, e.g., United States v. Hammoud, 381 F.3d 316, 328 n.3 (4th Cir. 2004),
vacated on other grounds, 543 U.S. 1097 (2005).
74 TRAC Report, supra note 9.
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(HLF).75 The HLF, founded in 1989, was the nation’s (self-proclaimed) largest Muslim charitable foundation in 2001.76 In December of that year, President Bush froze all HLF assets, declaring the
organization a Specially Designated Terrorist (SDT) and a Specially
Designated Global Terrorist (SDGT).77 These “designations were
based on information supporting the proposition that HLF was closely
linked to Hamas.”78 HLF appealed the SDT/SDGT designations to
the U.S. District Court for the District of Columbia.79 The District
Court conducted a “detailed review of the administrative record and
reiterated the evidence on which the Treasury Department relied [in
designating the] HLF as an SDGT.”80 The court concluded that there
was
ample evidence that (1) HLF has had financial connections to
Hamas since its creation in 1989; (2) HLF leaders have been actively
involved in various meetings with Hamas leaders; (3) HLF funds
Hamas-controlled charitable organizations; (4) HLF provides financial support to the orphans and families of Hamas martyrs and prisoners; (5) HLF’s Jerusalem office acted on behalf of Hamas; and
(6) FBI informants reliably reported that HLF funds Hamas.81
Thus, the Treasury Department discerned ties between HLF and
Hamas as early as 2001, a determination upheld by a district court and
affirmed by the court of appeals.
After Holy Land, the estate of David Boim—an American killed by
a Hamas bombing in Israel in 1996—sued the Foundation.82 HLF,
now a codefendant in the wrongful death suit, tried to relitigate the
SDT/SDGT designation and the underlying evidentiary basis for it.83
The U.S. District Court for the Northern District of Illinois examined
75 See Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir.
2003).
76 See id. at 160.
77 See id. The President has authority to impound funds pursuant to his national
security authority as well as the International Emergency Economic Powers Act
(IEEPA), 50 U.S.C.A. §§ 1701–1707 (West 2003 & Supp. 2008). Additionally, just 12
days after September 11, President Bush issued an executive order that permitted him
to freeze assets of those with ties to terrorists. Exec. Order No. 13,224, 3 C.F.R. 786
(2002).
78 Holy Land, 333 F.3d at 160.
79 See Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C.
2002), aff’d, 333 F.3d 156 (D.C. Cir. 2003).
80 Holy Land, 333 F.3d at 161.
81 219 F. Supp. 2d at 69.
82 See Boim v. Quranic Literacy Inst., 340 F. Supp. 2d 885, 888–91 (N.D. Ill. 2004)
(providing the procedural history of the case).
83 See id. at 902.
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Holy Land, and determined that the issue “was not only actually litigated in the Ashcroft case, but it was necessary to the D.C. Circuit’s
decision to affirm the district court’s dismissal of the bulk of HLF’s
complaint.”84 In short, the D.C. Circuit’s ruling in Holy Land relied
on “[t]he ample record evidence (particularly taking into account the
classified information presented to the court in camera) establishing
HLF’s role in the funding of Hamas and its terrorist activities is incontrovertible.”85 Consequently, the court found that issue preclusion
ought to apply.86 The court also noted that FBI investigations showed
HLF to be “the primary [domestic] fund-raising entity for HAMAS
and that a significant portion of the funds raised by the [HLF] are
clearly being used by the HAMAS organization.”87 This funding to
Hamas provided the lynchpin in the wrongful death suit summary
judgment, and the court—trebling the damages awarded by the
jury—ordered HLF to pay $156 million to the Boim family.88
These successes against HLF notwithstanding, the knowledge
loophole of §§ 2339B–C threatens future successful prosecutions.
The government’s largest material support case suffered a major setback in October, 2007, when the prosecution ended in mistrial.89
United States v. Holy Land Foundation centered on the individual liability of HLF leaders, including Mufid Abdulqader and Shukri Abu
Baker.90 The government provided evidence of the group’s ties to
Hamas, including a conversation between the defendants and other
Hamas sympathizers in Philadelphia in 1993.91 While discussing their
intent to derail the Israeli-Palestinian peace process at the meeting,
defendant Baker declared “that the United States should be used as a
84 Id. at 903.
85 Id. (quoting Holy Land, 333 F.3d 156, 165–66 (D.C. Cir. 2003)) (emphasis
added).
86 See id. at 166.
87 Id. at 893. The case remains in flux—while a panel of the Seventh Circuit
vacated the District Court judgment, see Boim v. Holy Land Found. for Relief and
Dev., 511 F.3d 707 (7th Cir. 2007), that decision was itself vacated by an en banc
ruling June, 2008, see id.
88 See Rudolph Bush, Hamas-Case Trial told of ‘96 Killing, CHI. TRIB., Dec. 8, 2006,
§ 2, at 3.
89 See Adam Liptak & Leslie Eaton, Financing Mistrial Adds to U.S. Missteps in Terror
Prosecutions, N.Y. TIMES, Oct. 24, 2007, at A16.
90 See Superseding Indictment at 7–12, United States v. Holy Land Found. for
Relief & Dev., 445 F.3d 771 (5th Cir. 2006) (No. 3:04-CR-00240), 2005 WL 4902463.
91 See id. at 10–11. The FBI recorded the meeting under a Foreign Intelligence
Surveillance Act (FISA) warrant. See Defendant’s Reply Brief at 1, United States v.
Holy Land Found., 445 F.3d 771 (5th Cir. 2006) (No. 3:04-CR-00240), 2006 WL
4679092 (describing evidence obtained under a FISA warrant).
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fundraising platform to further [Hamas’] goals. The attendees
acknowledged the need to avoid scrutiny by law enforcement officials
in the United States by masquerading their operations under the
cloak of charitable exercise.”92 After Hamas’ designation as an FTO
in 1996, the HLF changed tactics to promote their goals by encouraging members to use inflammatory language that would generate funds
without directly mentioning the organization or terrorism.93
Despite this evidence, a jury first acquitted the defendants, and
then three jurors recanted, resulting in a mistrial.94 One juror
remarked that the government’s proffered connection between HLF
and Hamas was too attenuated—a sure byproduct of the knowledge
requirement.95 Although the government will retry the case, the mistrial in the largest § 2339 case in history is a “‘stunning setback for the
government.’”96
How is such a turn of events possible? HLF’s ties to Hamas came
from a “massive administrative record”97—that included FBI tapes of
HLF leaders specifically pledging support to Hamas.98 That record, created by the Treasury Department, was reviewed by a federal district
court judge and a panel of appellate judges. It was afforded full
preclusive effect by another federal judge in a civil trial that produced
a multimillion dollar damages award. Yet nine jurors in Texas
thought the government’s case was “‘strung together with macaroni
noodles.’”99 Jurors are now “‘demanding strict proof,’” a standard
made difficult to fulfill by the statute’s unnecessarily complex knowledge requirement.100 In other words United States v. Holy Land Foundation for Relief & Development is precisely the kind of absurd result that
92 Superseding Indictment, supra note 90, at 9.
93 See id. at 14.
94 Liptak & Eaton, supra note 89.
95 See id. A juror noted that the prosecution “ ‘danced around the wire transfers
by showing us videos of little kids in bomb belts and people singing about Hamas,
things that didn’t directly relate to the case.’ ” Id. (quoting juror William Neal).
96 Leslie Eaton, U.S. Prosecution of Muslim Group Ends in Mistrial, N.Y. TIMES, Oct.
23, 2007, at A1 (quoting Matthew D. Orwig, a former U.S. Attorney). Indeed, former
Undersecretary of the Treasury Jimmy Gurulé, who authorized Holy Land Foundation’s original SDT/SDGT designation in 2001, stated that the verdict represented
“ ‘the continuation of what I now see as a trend of disappointing legal defeats.’ ” Id.
97 Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir.
2003).
98 See Superseding Indictment, supra note 90, at 9.
99 Peter Whoriskey, Mistrial Declared in Islamic Charity Case, WASH. POST, Oct. 22,
2007, at A3 (quoting juror William Neal).
100 See Liptak & Eaton, supra note 89 (quoting former federal prosecutor Thomas
M. Melsheimer).
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the knowledge prong of the material support statutes permit, and why
the material support law must be changed.101
A. Why Recklessness
Of the four general mental states required in criminality, recklessness has the widest applicability. The American Law Institute, in
drafting the Model Penal Code (MPC), established recklessness as the
presumed mens rea for all crimes unless otherwise stated.102 In the
MPC, a person who behaves recklessly “consciously disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree
that . . . [given the circumstances,] its disregard involves a gross deviation from the standard of conduct that a law-abiding person would
observe . . . .”103
The precision of Section 2.02 guards against an interpretation of
recklessness drawn from the estuaries of legal and nonlegal language.104 The “reckless” behavior of everyday parlance cannot serve
as a basis for a conviction. Instead, criminal recklessness requires that
a defendant disregard a risk that no reasonable person would have
ignored.105 Use of recklessness as a mens rea also serves to prevent
the “criminaliz[ation of] otherwise innocent conduct.”106 Further, it
places potential donors on guard and protects against the law’s effect
being “frustrated by knowing winks and nods.”107
101 This conclusion rests on the belief that Congress has conclusively spoken on
the matter, and cases like Humanitarian Law Project I through V have exhaustively
established knowledge of the donee’s status as an FTO or of their terrorist activities as
the mens rea. There is no purpose requirement, a fact borne out by case law and the
explicit text of the statutes. See supra Part I.
102 MODEL PENAL CODE § 2.02 (Official Draft and Revised Comments 1985).
103 Id. § 2.02(2)(c).
104 While examination of both the legal definition and the vernacular use of a
word provides context in most situations, in this instance it would confuse matters
where the two usages significantly depart from one another.
105 The MPC descriptions of both recklessness and negligence use the “reasonable
person” standard. The important distinction between the two is that the reckless
actor disregards a risk no reasonable person would have disregarded, while a negligent actor is simply unaware of a risk that a reasonable person would have foreseen.
See generally id. §§ 2.01–2.04 (describing the distinction between the various mentes
reae).
106 United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
107 Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring)
(explaining how overly strict statutes and constructions permit clever defendants to
evade prosecution).
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The Model Penal Code comments develop the knowledge-recklessness distinction. In circumstances involving knowledge of a material fact or circumstance, it is impossible to determine precisely what a
defendant knew and when he knew it. Instead, the distinction
between “knowing” acts and “reckless” acts comes in gradations of
cognizance.108 “Knowledge” usually requires “proof of notice of high
probability,”109 which is by no means certitude. Recklessness, on the
other hand, “involves conscious risk creation . . . . [A] state of awareness is involved, but the awareness is of risk, that is of a probability less
than substantial certainty.”110 The “contingency” element reduces the
degree of awareness needed to commit the underlying offense.
At first glance, knowledge as mens rea has normative arguments
in its favor. As a higher mens rea requirement, knowledge of terrorist
acts guards against prosecution of the low-hanging fruit—those who
recklessly donate. It also secures convictions against those who understand whom and what their money goes to support. Nevertheless, the
fear of improper prosecutions is simply unsubstantiated by the data.
Most of the material support cases end in pleas to other charges or
acquittal, indicating that the current statutes are far from a liability
trap used by United States Attorneys.111 Moreover, the “low-hanging
fruit” defendants are precisely those who should be prosecuted,
because their contributions fund suicide bombings just as surely as
those who knowingly contribute. An argument about convicting the
guilty certainly has merit, but that would not change under a recklessness standard.
The strongest arguments for the recklessness standard are pragmatic ones. Initially, terrorists and their networks rely heavily on support from abroad to finance their operations.112 The United States
must take the necessary steps to forestall terrorist financing, notably
by targeting the supply side—donors. Further, the potential for avoiding liability is substantial under the current scheme of knowledge. By
eliminating the defense of innocence through ignorance, prosecutors
would be free to secure convictions of those who hide behind the
increasingly layered and diffuse terror-funding networks. As a result,
108 See MODEL PENAL CODE § 2.02 cmt. 9, at 248 (Official Draft and Revised Comments 1985).
109 Id.; see also id. n.42 (explaining that the first draft of the Model Penal Code
based knowledge on “substantial probability,” but that the drafters changed the wording to “high” probability to avoid too low of a threshold for guilt).
110 Id. § 2.02 cmt. 3, at 236.
111 See TRAC Report, supra note 9.
112 In the late 1990s, for example, Osama bin Laden poured out millions of his
money just to start the fledgling al Qaeda network. WRIGHT, supra note 44, at 222–29.
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changing the statutes to require reckless knowledge eliminates the
problems of acquittals in cases like Holy Land Foundation for Relief &
Development, where the “Philadelphia Meeting” would have been sufficient to sustain a conviction. Additionally, by expanding terror-support liability, prosecutors gain a valuable asset in plea bargains
negotiated with middlemen and American representatives of
terrorists.113
Changing the mens rea requirement has an important channeling function as well. Aside from the prophylactic effect of broader
liability—that would forestall some donors who hoped to donate in
willful blindness—a changed mental state element would encourage
due diligence and careful investigation by donors. There are
thousands of deserving—and legitimate—humanitarian organizations
in the United States and abroad with ties to the Middle East and the
developing world. These organizations would not suffer under a new
regulation, nor would their supporters. Indeed, by forestalling innocent contributions to terror-controlled front organizations, the legitimate groups would receive more funds.
With these benefits in mind, Congress should change the current
statutes to reflect the needs and the reality of the present situation.
With the appropriate mens rea and other changes, the new statutes
would read:
18 U.S.C. § 2339A (Proposed) (Originally § 2339A–B)
(a) PROHIBITED ACTIVITIES.—
(1) UNLAWFUL CONDUCT.— Whoever knowingly provides material
support or resources to a foreign terrorist organization, a person
who plans to commit or has committed terrorism, or any person(s)
or group(s) under the direction or control of a foreign terror
organization, or attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 25 years, or both, and, if the
death of any person results, shall be imprisoned for any term of
years or for life. To violate this paragraph, a person must
(i) disregard a serious or known risk that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that
the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality
Act), or that the organization has engaged or engages in terrorism
(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989), or
113 As RICO predicate offenses, the material support statutes also convey significant liability on enterprises and corporations. See 18 U.S.C. § 1961 (2006) (listing the
material support provisions as RICO predicate acts).
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(ii) know that the organization or person receiving material support
engages in or has engaged in activities that violate § 2339B of this
title.
(2) PURPOSE UNNECESSARY.—To violate this paragraph, a person
need not purposely promote or further the illicit, illegal, or unlawful ends of a terrorist organization.
18 U.S.C. § 2339B (Proposed) (Originally § 2339C)
(a) OFFENSES.—
(1) IN GENERAL.—Whoever, in a circumstance described in subsection (b), by any means, directly or indirectly, recklessly provides or
collects funds with the purpose that such funds be used, in full or in
part, by a person or persons who engage in, have engaged in, or
have purpose to carry out any of the following—[Remainder of the
original § 2339C remains].
The alterations merge the current §§ 2339A and 2339B.114 Section 2339B liability now depends on whether the defendant disregarded a serious risk that the donee was an FTO or that it engaged in
terrorism, regardless of the defendant’s purpose for how the support
would be used. The proposed Section 2339A(a)(1)(ii) closes a loophole where contributors provide support to a third party clearinghouse, and not directly to terrorists. Proposed Section 2339B would
remove any purpose requirement for defendants who provide or collect funds,115 and incorporates a broader category of proscribed target
acts.116 Moreover, because it preserves the provisions of the International Convention for the Suppressing of the Financing of Terrorism,
the United States would remain in compliance with the treaty.117
Indeed, the proposed changes reflect the notion that the Convention
114 Because the proposed statutes merge all terror activities and groups into one
category, the list of terrorist activities in the original § 2339A becomes redundant. As
such, it is preserved implicitly in the proposed change. Section 2339A(1)(a) also captures the so-called “Lone Wolf” terrorist—the person who acts without any ties to
terror networks—by criminalizing support to any person who plans to commit or has
committed acts of terrorism.
115 This position is consistent with Congress’ view on the danger of providing any
funds to a terrorist group, regardless of how the money is used. Because funds are
fungible, money spent on legal purposes still frees up other assets to be used on illicit
purposes, and thus still benefits terrorism. See Humanitarian Law Project II, 205 F.3d
1130, 1132–36 (9th Cir. 2000) (explaining that purpose is irrelevant in a material
support prosecution, because all contributions to terrorists support the “grisly” aims
of terrorism and noting Congress’ specific finding that no donation to a terror group
is ever innocent of the resulting violence).
116 The domestic ramifications of these changes are addressed infra Part IV.
117 See supra note 48 and accompanying text.
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represents a floor, and not a ceiling, of liability for terrorism
prevention.
To clarify how the revised statutes would be an improvement, one
need look only to the United States v. Holy Land Foundation for Relief &
Development case.118 The material support statutes, as amended, could
have altered the outcome of that trial. For example, rather than proving that Abdulqader knew that Hamas was a terrorist organization (or
that it was a designated FTO), the U.S. Attorney would only have
needed to prove that the defendants disregarded a substantial risk of
those connections. Thus, the “Philadelphia Meeting”119 was likely evidence of a substantial risk that donations to the HLF would go to terrorists, and no reasonable person would disregard such a risk.
Detractors of more rigid anticontribution rules raise a panoply of
objections to increasing liability. As the court in Afshari v. United
States120 noted, “one man’s terrorist is another man’s freedom
fighter,” or so the argument goes.121 Clausewitz’s axiom that war is
the extension of politics by “other means” tends to legitimate the winners in combat, rather than the virtuous.122 Though indulging in historical counterfactuals is an entertaining exercise—and a useful one
for defense attorneys—it does little to provide an understanding of
how to eradicate funding networks for terrorists. Along those lines,
debating the philosophical underpinnings of recklessness may serve
its purpose as a determinant of what level of liability Congress should
impose for certain behavior. Yet discussion must eventually give way
to action.
Moreover, this Note does not advocate a liability trap for the
unwary.123 The justification for recklessness is not to catch the unwitting contributor to an organization that hides its acts of terror. For
example, assume that A contributes to B, a group that solicits funds
for victims of violence in Belfast. A does not know that B is a front for
C, a radical terrorist organization committed to a violent resolution of
the Troubles in Northern Ireland. A would be guilty of no crime
118 See supra notes 89–101 and accompanying text.
119 Superseding Indictment, supra note 90, at 10–11.
120 426 F.3d 1150 (9th Cir. 2005).
121 Id. at 1155.
122 Indeed, Irgun—the radical Zionist insurrection led by Menachem Begin—
engaged in activities that were terroristic. See JOSEPH HELLER, THE BIRTH OF ISRAEL,
1945–1949, at 270–72 (2003) (describing the bombing of the King David Hotel in
Jerusalem and the Irgun bombing campaign in 1946–48).
123 On the contrary, avoiding conviction of the innocent should be a top priority
for both scholars and prosecutors. Instead, this Note attempts to curb exploitation of
loopholes by defendants who are smart enough to say that they “just didn’t know.”
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under the proposed changes to § 2339B, provided A did not disregard
a risk no reasonable person would have ignored. Thus, if B mentioned ties to C, or espoused the violent ideology of C, a reasonable
person would have—at least—investigated that potential relationship.
Again, mere negligence in these circumstances will not suffice.
Even if a reasonable person should have known that there were ties to
a terrorist group, this would be insufficient to secure a conviction.124
For example, assume A is an unwitting contributor to a group like
Hamas.125 B, a fundraiser for Hamas, tells A the name of the organization and that any funds would go towards building a hospital.126
While many people have heard of Hamas and know of its campaign of
suicide bombings in Israel, A’s ignorance is not ipso facto criminal
recklessness. Instead, the government would need to prove that A was
aware of a substantial risk that Hamas engaged in terror, and still
contributed.
These proposed changes would have little cognizable effect on
innocent contributors. Defendants have a built-in defense that they
were simply unaware of the risks associated with their behavior.
Again—and in spite of the recurrence of the “reasonable person” language—criminal negligence would be insufficient to convict under
the new regime. It is the act of disregarding a substantial risk that creates criminal liability under the proposed statutes, not awareness of
the existence of the risk.
The result of these changes is that guilty contributors cannot hide
behind a difficult mens rea requirement to escape liability, but innocent contributors still avoid conviction. Indeed, the statute as
amended gives improved effect to Congress’ original aim—the elimination of sources of funding for terror.
B. The Due Process Critique
A potential criticism of the proposed material support statute
focuses on potential due process considerations.127 Some commentators suggest that the current statutes violate the standards for personal
124 See MODEL PENAL CODE § 2.02 (Official Draft and Revised Comments 1985)
(explaining the difference between negligence and recklessness).
125 For further examination of Hamas and its history, see MATTHEW LEVITT, HAMAS
(2006).
126 Hamas, in fact, does build hospitals and provide social services. See id. at 3–6.
127 See Humanitarian Law Project III, 352 F.3d 382, 397 (9th Cir. 2003), vacated,
Humanitarian Law Project IV, 393 F.3d 902 (9th Cir. 2004) (noting that § 2339B implicates due process concerns).
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guilt set forth in Scales v. United States.128 The argument proposes that
by criminalizing provision of material support without a guilty purpose, §§ 2339A–C violations are, in the Court’s words in Scales, “an
insufficiently significant form of aid and encouragement to permit the
imposition of criminal sanctions.”129 For example, one commentator
posits that the statutes would be unconstitutional without establishing
that the “relationship between . . . [the proscribed conduct and international terrorism] is sufficiently substantial to justify imposing liability without requiring culpability.”130 The argument against these
apparent flaws would apply a fortiori to the statutes as amended, given
that the changes would likely increase the conviction rate.
From the outset, this critique ignores a key facet of the Humanitarian Law Project decisions and §§ 2339A–C. There is a culpability
requirement—namely, contributing to a group that the donor knows
is an FTO or that it engages in terror.131 In Humanitarian Law Project
III, the Ninth Circuit states that “Scales established the test, stated
above, to determine whether holding a person culpable for his or her
relationship to an organization is consonant with due process; Scales
analyzed the relationship between a person’s ‘status or conduct’ with an
organization . . . .”132 As the Supreme Court itself said in Scales, its
decision “prevents a conviction on what otherwise might be regarded
as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.”133 The material support statutes
are predicated on the act of donation, not mere agreement or membership without adherence to the unlawful objective.134 Changing the
required mens rea to recklessness has no effect on the actus reus:
donation.
To quell those concerns further, the explicitly stated mens rea
requirement satisfies Scales as well. Defendants’ due process rights are
“duly met when the statute is found to reach only ‘active’ members
having also a guilty knowledge and intent.”135 Because the proposed
128 367 U.S. 203, 225–27 (1961). For an explanation of the due process critique,
see Jonakait, supra note 26, at 884–902.
129 Scales, 367 U.S. at 227.
130 Pendle, supra note 26, at 798.
131 Humanitarian Law Project III, 352 F.3d at 396–97 (noting that what the statute
criminalizes is providing “ ‘material support’ to a designated organization that
engages in both humanitarian and unlawful activities”).
132 Id. at 395.
133 Scales, 367 U.S. at 228 (emphasis added).
134 See, e.g., Humanitarian Law Project III, 352 F.3d at 395–97 (explaining the relevance of conduct in a Scales analysis).
135 See Scales, 367 U.S. at 228.
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Sections 2339A–C each prescribe a recklessness requirement, they
avoid the associational strict liability that Scales prohibits.136 The
“guilty knowledge” mentioned in Scales should be read as a requiring
a mens rea in general, and not one in particular, especially when
viewed in the context of the case. The Court went to great lengths to
determine whether the Smith Act,137 which prompted Scales v. United
States,138 prohibited membership in the Communist Party as a matter
of strict liability or because of guilty participation in illicit activities.139
It concluded that some degree of mens rea was necessary to sustain a
conviction, and relied on the state of mind Congress explicitly chose
in the statute—knowledge.140 There is no reason to believe that the
Court would not have similarly upheld the Smith Act if it had based
liability on reckless behavior.141
C. The Expressive Association Critique
The proposed statutes also potentially implicate rights of expressive association. The right to associate with a group “overlap[s] and
blend[s]”142 with the freedom of speech guaranteed by the First
Amendment.143 Association is a “fundamental element of personal
liberty,”144 and the right to associate extends to unpopular positions
and groups.145 Adherents to extreme ideologies fall within the ambit
of the First Amendment, including those who support the ends of ter136 See id. at 226–28; see also Humanitarian Law Project III at 405–08 (Rawlinson, J.,
dissenting) (distinguishing between active material support to terror groups and
mere association or theoretical support).
137 18 U.S.C. § 2385 (2006).
138 Scales, 367 U.S. at 205.
139 See id. at 207–19.
140 Id. at 224–28.
141 One commentator has suggested that the statutes be revised to include a reckless purpose element as a curative measure to the potential due process infirmity of
§ 2339B. See generally Pendle, supra note 26. Because those due process concerns are
unfounded, any change to the purpose element would only serve to make prosecutions more difficult. In other words, moving from no purpose requirement (the present standard) to reckless purpose (the proposed change) does not rectify any
constitutional infirmity, it does not resolve the Holy Land Foundation for Relief & Development conundrum evinced above, and it unnecessarily increases the burden of proof
for the government.
142 Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 300 (1981)
(expounding on the ties between association and free speech).
143 U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom
of speech . . . .”).
144 Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
145 See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (noting that
expressive association is “ ‘especially important in preserving political and cultural
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rorism.146 Association may also include monetary support for an individual or group—that also receives First Amendment protection.147
In the political advocacy context, the Supreme Court stated that
“[m]aking a contribution, like joining a political party, serves to affiliate a party with a candidate.”148 Some scholars posit that “contributing resources to any organization is an act of affiliation with that
group, implicating the right of association.”149
United States v. O’Brien150 provides the framework for differentiating between permissible and criminal forms of speech. O’Brien
addressed the symbolic speech of burning a draft registration certificate in violation of a federal statute.151 The Court rejected O’Brien’s
demand for a sweepingly broad concept of protected speech.152
Instead, it adopted a four-part test to determine the constitutionality
of a statute—a test now referred to as the “intermediate scrutiny” standard.153 Chief Justice Warren set out the test as follows:
diversity and in shielding dissident expression from suppression by the majority’ ”
(quoting Roberts, 468 U.S. at 622)).
146 The importance of the means-ends distinction will become apparent upon
examination of the relevant material support case law. For an explanation of the
distinction between “mere association” and material support, see Humanitarian Law
Project II, 205 F.3d 1130, 1133 (9th Cir. 2000), aff’d in part, vacated in part sub nom.
Humanitarian Law Project v. U.S. Dep’t of Justice (Humanitarian Law Project IV), 393
F.3d 902 (9th Cir. 2004), aff’d sub nom. Humanitarian Law Project v. Mukasey, 509
F.3d 1122 (9th Cir. 2007) (explaining that one may be a member of a designated
terrorist group without violating the material support statutes).
147 See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (holding that donations to political groups constitute expression).
148 Id. at 22.
149 See Jonakait, supra note 26, at 888; see also ROBERT D. PUTNAM, BOWLING ALONE
338 (2000) (cited in Jonakait, supra note 26, at 885 n.77).
150 391 U.S. 367 (1968) (upholding a conviction of a Vietnam war protester who
destroyed his draft card on the grounds that his actions were not protected speech).
151 See id. at 369–70. O’Brien, a war protester, was charged under the Universal
Military Training and Service Act, 50 U.S.C. app. § 462(b) (1964), which sanctioned
anyone “ ‘who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any [draft registration] certificate.’ ” O’Brien, 391 U.S. at 370.
152 See O’Brien, 391 U.S. at 369–70. As the Court put it:
We cannot accept the view that an apparently limitless variety of conduct can
be labeled “speech” whenever the person engaging in the conduct intends
thereby to express an idea. However, even on the assumption that the
alleged communicative element in O’Brien’s conduct is sufficient to bring
into play the First Amendment, it does not necessarily follow that the
destruction of a registration certificate is constitutionally protected activity.
Id. at 376.
153 Id. at 377. While the O’Brien formula was not the first iteration of intermediate
scrutiny, it has become a juridical standard.
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[G]overnment regulation is sufficiently justified if it is within the
constitutional power of the Government; if it furthers an important
or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.154
The Ninth Circuit performed this O’Brien analysis in Humanitarian Law Project II.155 Judge Kozinski began by pointing out that
“expressive conduct receives significantly less protection than pure
speech.”156 The key question in Humanitarian Law Project II was
whether AEDPA was narrowly tailored enough to pass constitutional
muster.157 Because the issue was one of both foreign affairs and
national security, the court afforded Congress “wide latitude in selecting the means to bring about” its policy preferences.158
In light of that deference, Congress’ findings on the nature of
support to terrorism are crucial to future applications of the O’Brien
analysis to the revised statutes.159 Monies sent to terrorists—for any
purpose—may be used for illicit ends. For example, while donors
may wish to support the hospital-building efforts of Hamas, the money
they provide “frees up resources that can be used for terrorist acts.”160
Congress recognized this fungibility problem in its findings before
passing AEDPA, noting, “‘foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that [terrorist] conduct.’”161
Given both the national security implications of material support to
terrorists and the current statutes’ favorable judicial history, there is
no reason to believe that the revised statutes would not survive intermediate scrutiny. By ensuring criminal punishment only for those
154 Id.
155 See Humanitarian Law Project II, 205 F.3d 1130, 1135 (9th Cir. 2000).
156 Id. at 1134–35; see also Texas v. Johnson, 491 U.S. 397, 406 (1989) (“The government generally has a freer hand in restricting expressive conduct than it has in
restricting the written or spoken word.” (citing O’Brien, 391 U.S. at 376–77)).
157 Humanitarian Law Project II, 205 F.3d at 1136. The Court quickly dispensed
with the other three elements of the O’Brien analysis, summarizing the issue in just
one paragraph. Id. at 1135.
158 Id. at 1136.
159 See id.
160 Id.
161 Id. (quoting Pub. L. No. 104-132, § 3031(a)(7), 110 Stat. 1214, 1247 (codified
as amended at 18 U.S.C. § 2339B (2006))). Indeed, armed with these determinations, the Ninth Circuit upheld Congress’ regulation of contributions in the Act. See
id.
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who engage in criminally reckless behavior, the new statutes avoid a
direct—and impermissible—restriction on expression.162
III.
THE DOMESTIC TERROR CRISIS
The third portion of this Note will focus on revising the material
support statutes to reflect the changing nature of terrorism.163 The
proposed changes to the material support statutes rectify the gap in
current law that permits terrorists from the United States to escape
liability.
The words “September 11” have become a political mantra in the
United States, spoken early and often in electoral cycles to warn alternately of the dangers of terrorism or chastise those who failed to foresee those dangers. A more appropriate treatment of that date is
recognition of its paradigmatic significance in the American understanding of terrorism. In the aftermath of those attacks, the federal
government clamored to erect a workable antiterror framework.164
The majority of this reaction addressed the problem of “keeping the
terrorists out,” something we failed to do before September 11.
Among the hijackers, the Saudi Arabians, for example, had little difficulty gaining entry to the United States.165
Because the hijackers were all foreigners, the idea that all terrorists must also come from outside the United States seeped into the
American consciousness. The amorphous and international al Qaeda
bore principal or direct responsibility for most of the preceding terror
162 This analysis covers the potential claim of “political speech.” While nearly any
act can have some communicative or political overtones, this cannot justify funding
terror. Put another way, while John Wilkes Booth’s assassination of President Lincoln
was obviously political, Dr. Samuel Mudd could not disclaim liability for helping the
assassin on the basis of expressing his approval for the Confederacy.
163 The following Part addresses issues of Islamic extremism and uses Arabic terms
frequently throughout. For purposes of clarity, when referring to the particular strain
of fundamentalist Islam to which most terror groups ascribe, I use the term “Salafism”
rather than the more popular “Wahhabbism.” Further, when the term “jihad” is used,
it refers to the Salafist notion of holy war against the West, secularism, and other
Muslims (a notion known as qital), as opposed to the more orthodox view of an internal struggle for self-perfection among individual Muslims. For an excellent summary
of Salafism, its roots, and its interaction with mainstream Islam, see WRIGHT, supra
note 44, at 72–73.
164 See, e.g., Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, Pub.
L. No. 107-56, 115 Stat. 272 (codified in scattered sections of 8, 12, 15, 18, 22, 28, 31,
42, 49, 50 U.S.C.) (instituting major reforms of American national security policy and
law enforcement).
165 WRIGHT, supra note 44, at 349.
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attacks on American interests abroad.166 Consequently, Congress
framed the antiterror issue in terms of global security and legislated
accordingly.167 This preoccupation seemed justified given the contemporary state of American terrorism law. Senator Jon Kyl noted at
the time that “[i]t will probably surprise the Members of [the Senate]
a great deal to know that, under current law, a terrorist alien is not
considered either inadmissible to, or deportable from, the United
States.”168 Passage of the USA PATRIOT Act, changes in immigration
law, and the material support statutes reflected Congress’ commitment to fighting “global” terror.
Absent from this policy overhaul was any serious discussion of
domestic terror.169 To understand the phenomenon of the dearth of
legislative or executive attention to homegrown terror, I offer a survey
of current United States policy.
A. The Government’s Myopia on Domestic Terror
Ignoring purely domestic terror begins at the top. The National
Security Strategy (NSS) of the United States “explains the strategic
underpinning of [the President’s] foreign policy.”170 More than this,
the NSS reflects the attitude of the administration towards all matters
affecting the security of American persons and interests.171 The NSS
approach to global security and terrorism is decidedly ideological,
explaining the rise of domestic terror as follows:
166 See generally id.
167 See 147 CONG. REC. 20,732 (2001) (statement of Sen. Kyl) (“[T]he U.S. government will need additional tools to keep terrorists out of the country and, once they
are in the country, find them and remove them. That means, among other things,
eliminating the ability of terrorists to present altered international documents, and
improving the dissemination of information about suspected terrorists to all appropriate agencies.”).
168 Id.
169 In the seven years since September 11, the concept of American domestic terrorism has received only the barest of attention, in the form of the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007. H.R. 1955, 110th Cong.
(2007). The Act does not purport to tackle the emergence of homegrown terror, but
rather to fund academic research on the topic. See id.; see also infra note 210 (describing features of the legislation). This unenacted bill represents the sole legislative
effort of the federal government in combating homegrown terrorism.
170 Stephen Hadley, Nat’l Sec. Advisor, Remarks on the President’s National
Security Strategy (Mar. 16, 2006), available at http://www.state.gov/r/pa/ei/wh/
63257.htm (last visited Nov. 11, 2008).
171 See THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES (2006), http://
www.whitehouse.gov/nsc/ns/2006/nss2006.pdf [hereinafter NSS]. The present strategy conveys policy positions on immigration, commerce, terrorism, and the domestic
security apparatus, among others.
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Democracies are not immune to terrorism. In some democracies,
some ethnic or religious groups are unable or unwilling to grasp the
benefits of freedom otherwise available in the society. Such groups
can evidence the same alienation and despair that the transnational
terrorists exploit in undemocratic states. This accounts for the
emergence in democratic societies of homegrown terrorists such as
were responsible for the bombings in London in July 2005 and for
the violence in some other nations.172
The proffered solution is “[t]he advance of freedom and human dignity through democracy.”173 No pragmatic solution is presented.
This ideological—as opposed to legislative or prosecutorial—
approach to terrorism carries over to the National Strategy for Homeland Security (NSHS), the domestic counterpart to the NSS.174 The
NSHS characterizes domestic terrorism as a phenomenon driven by
radicalization.175 While this correctly grasps the roots of domestic terror, it provides no working framework for how to address the problem, only offering to continue “efforts to defeat this threat by working
with Muslim American communities that stand at the forefront of this
fight.”176
Domestic security agencies fare little better under any scrutiny.
The FBI, for example, is the vanguard agency for counterterrorism.177
Director Robert Mueller testified before Congress in September 2007
that the Bureau considered “homegrown terrorists or extremists, acting in concert with other like-minded individuals, or as lone wolves,
172 Id. at 11.
173 Id.
174 See HOMELAND SEC. COUNCIL, NATIONAL STRATEGY FOR HOMELAND SECURITY
(2007), http://www.whitehouse/gov/infocus/homeland/nshs/NSHS.pdf [hereinafter NSHS].
175 See id. at 9–10 (“The United States also is not immune to the emergence of
homegrown radicalization and violent Islamic extremism within its borders. The
arrest and prosecution inside the United States of a small number of violent Islamic
extremists points to the possibility that others in the Homeland may become sufficiently radicalized to view the use of violence within the United States as legitimate.
While our constitutional protection of freedom of religion, history of welcoming and
assimilating new immigrants, strong economic opportunities, and equal-opportunity
protections may help to mitigate the threat, drivers of radicalization still exist.”).
176 Id. at 10.
177 The FBI National Security Branch describes its mission as “lead[ing] and coordinat[ing] intelligence efforts that drive actions to protect the United States.” See
Fed. Bureau of Investigation, Nat’l Sec. Branch, Mission Statement, http://www.fbi.
gov/hq/nsb/nsb_mission.htm.
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[to be] one of the gravest domestic threats we face.”178 One year earlier, Deputy Director John Pistole pointed out that the majority of the
terrorism cases in the United States involved material support, a position borne out by empirical research.179 Nevertheless, Director Mueller notes that many of the cases under review “may have ties
overseas.”180 Similarly, the National Security Branch (NSB) of the FBI
focuses its counterterrorism efforts on international terrorism entering the United States, though it does address the burgeoning domestic terrorist threat.181 The Department of Homeland Security, on the
178 Terrorist Threat Six Years After 9/11 Before the S. Comm. on Homeland Security &
Governmental Affairs, 110th Cong. 2 (2007) [hereinafter Homeland Security Comm.
Testimony] (testimony of Robert S. Mueller, Director, Fed. Bureau of Investigation).
179 See TRAC Report, supra note 9.
180 See Homeland Security Comm. Testimony, supra note 178, at 2 (testimony of
Robert S. Mueller, Director, Fed. Bureau of Investigation).
181 Current and Projected National Security Threats Before the S. Select Comm. on Intelligence, 110th Cong. 18 (2007) (testimony of Robert S. Mueller, Director, Fed. Bureau
of Investigation). Nevertheless, aside from a brief recitation of the dangers of radicalization, the NSB describes homegrown terror as follows:
While much of the national attention is focused on the substantial
threat posed by international terrorists, we must also contend with an ongoing threat posed by domestic terrorists based and operating strictly within
the United States. Domestic terrorists, motivated by a number of political or
social issues, continue to use violence and criminal activity to further their
agendas.
Despite the fragmentation of white supremacist groups resulting from
the deaths or the arrests of prominent leaders, violence from this element
remains an ongoing threat to government targets, Jewish individuals and
establishments, and non-white ethnic groups.
The militia/sovereign citizen movement similarly continues to present a
threat to law enforcement and members of the judiciary. Members of these
groups will continue to intimidate and sometimes threaten judges, prosecutors, and other officers of the court.
....
Animal rights extremism and eco-terrorism continue to pose a threat.
Extremists within these movements generally operate in small, autonomous
cells and employ strict operational security tactics making detection and
infiltration difficult. These extremists utilize a variety of tactics, including
arson, vandalism, animal theft, and the use of explosive devices.
Id.
Despite this admission, the majority of the Bureau’s resources are devoted to
avoiding international terrorism from coming to the United States. For example,
since 2002, the FBI has staged four major terror-attack simulations involving all levels
of local, state, and federal officials known as TOPOFF (for “Top Officials”) 1 through
4. See id. Every one has focused solely on international terrorists coming into the
United States. See Dep’t of Homeland Sec., TOPOFF: Exercising National Prepared-
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other hand, offers no statement on domestic terror groups, adopting
the “keep them out” strategy.182
Even those who recognize the danger of homegrown terror offer
no solutions to the problem. John Scott Redd, the director of the
National Counterterrorism Center (NCTC), explained in the summer
of 2007 that the “terrorist threat the United States faces includes both
al-Qaeda-directed plotting as well as al-Qaeda-inspired, ‘homegrown’
terrorists.”183 Despite this admission, Redd goes on to say that there is
“no magic organizational bullet” to solving the problems of domestic
terror.184 Director Mueller’s testimony to Congress is similarly bereft
of suggestions on how to tackle domestic terror. Instead, his remarks
reflect the FBI’s institutional preoccupation with terrorism as a foreign-born problem.185
There seems to be no shortage of words about the homegrown
terror problem. Conservatives, progressives, technocrats, and bureaucrats all acknowledge the existence of a looming threat. Few, however, have proffered a potential answer, and those few do not include
members of Congress or the administration.186 To be fair, assigning
blame is simple and crafting solutions is not. Nonetheless, the current
government posture both ossifies the belief that terrorists come from
abroad and offers no policies or statutory revisions to combat homegrown terrorism. Indeed, the only pending revisions to the material
ness (Apr. 21, 2008), http://www.dhs.gov/xprepresp/training/gc_1179350946764.
shtm.
182 See Homeland Security Comm. Testimony, supra note 178, at 2 (testimony of
Michael Chertoff, Secretary, U.S. Dep’t of Homeland Sec.) (“A key priority for our
Department remains keeping dangerous people from entering the United States to
engage in criminal activity or to carry out terrorist attacks. If we can prevent dangerous people from infiltrating our borders then we have successfully dismantled a large
part of the threat.”).
183 John Scott Redd, Editorial, Yes, We Do Have a Clue, WASH. POST, July 13, 2007,
at A12.
184 Id.
185 See supra notes 178–81 and accompanying text. This is not to suggest that the
FBI should direct its attention away from international terrorists like al Qaeda and
their affiliates. Rather, this Note advocates providing the FBI, the Department of
Homeland Security, and the Department of Justice the tools to tackle homegrown
terrorism without needing to prove a potentially nonexistent foreign connection
under the (very useful) material support statutes.
186 See, e.g., Robert M. Chesney, Beyond Conspiracy? Anticipatory Prosecution and the
Challenge of Unaffiliated Terrorism, 80 S. CAL. L. REV. 425 (2007) (exploring conspiracy
law as a tool to combat terror). Professor Chesney’s article does not provide a solution to the structural flaws present in the material support statutes, however.
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support statutes are sentencing increases.187 These laws, though a
potent tool for prosecutors, suffer the same myopic infirmity as the
government’s general approach to terror—namely, they require an
international element.188
The principal danger with this international focus is that it has
not adapted to the changing shape of either foreign or domestic terrorism. A widely acclaimed survey of domestic extremism published
by the New York Police Department (NYPD Report) directly addresses
the issue and explores the growing problem of fundamentalism and
radicalization in the United States.189
The NYPD Report traces the trajectory of radicalization, from
“pre-radicalization” through “jihadization” and attack.190 Moreover, it
provides in-depth analysis of five terror attacks in Europe since September 11 as well as three foiled attacks in the United States during
the same period.191 As a general rule, the report finds that there is no
talismanic formula for determining who will follow the trajectory to a
grisly end and who is merely testing the ideological waters. Its general
portrait, though, is a “[m]ale Muslim . . . [u]nder the age of 35,” from
the middle class, educated, and easily categorized as “[u]nremark187 See, e.g., H.R. 3156, 110th Cong. § 614(a) (2007); S. 1320, 110th Cong. (2007)
(increasing penalties for material support from fifteen to forty years).
188 See 18 U.S.C. § 2339B(a)(1) (2006) (“Whoever knowingly provides material
support or resources to a foreign terrorist organization . . . .”); id. § 2339C(b) (establishing jurisdiction over terrorists acts committed in the United States by foreign persons and over acts committed outside the United States by U.S. nationals or “habitual
residen[ts]” of the United States); id. § 2339D(a) (forbidding any person from
obtaining “military-type training from or on behalf of any organization designated . . .
as a foreign terrorist organization”).
189 MITCHELL D. SILBER & ARVIN BHATT, N.Y. POLICE DEP’T INTELLIGENCE DIV.,
RADICALIZATION IN THE WEST (2007), http://www.nypdshield.org/public/SiteFiles/
documents/NYPD_Report-Radicalization_in_the_West.pdf. The report focuses on
Islamic fundamentalism at the expense of other forms of domestic extremism, like
the Aryan Nation or some animal rights groups. Nevertheless, those groups follow
patterns of behavior known and documented by the government, while the threat of
the homegrown jihadi is a new phenomenon in the United States.
190 Id. at 19. The four stages proffered by the NYPD begin with “pre-radicalization,” an analysis of the environment in which potential extremists live. Id. at 22.
Next comes “self-identification,” which “marks the point where the individual begins
to explore [fundamentalist] Islam.” Id. at 30. The following step is “indoctrination,”
where the individual “progressively intensifies his beliefs, wholly adopts jihadi-Salafi
ideology and concludes, without question, that the conditions and circumstances exist
where action is required to support and further the Salafist cause.” Id. at 36. Finally,
the radicalization consummates in “jihadization,” where individuals “accept their individual duty to participate in jihad and self-designate themselves as holy warriors or
mujahedeen.” Id. at 43.
191 See generally id.
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able.”192 If this taxonomy seems imprecise, it is because it seems to
describe the majority of Muslim men in America—a point that critics
of the report would not be hesitant to raise.
Despite some imprecision, the report as a totality is a useful
resource for chronicling the transition from “unremarkable” citizen to
jihadi. For example, each of the five European case studies paints a
similar picture of this process.193 Most of the attackers came from
middle- to upper-middle class families and nearly all were citizens or
second-generation immigrants in their respective countries.194 With
the exception of the Hofstad Group, the attackers normally had no
criminal records and in some cases were noted for their talents in the
workplace and their amicability.195 Many did not appear to have
assimilation problems, like Jamal Zougam—one of the Madrid bombers—who “was described as handsome, likable and one of the more
popular youths among the Moroccan community living in
Madrid . . . . [He] seemed to be perfectly integrated into Spanish
society.”196 Most striking of all, perhaps, is the apparent lack of religiosity among the plotters until shortly prior to the attacks.197 These
men uniformly paint a picture of swift change from docile to deadly.
The important query is whether this process occurs in the United
States as well. The report acknowledges the comparative lack of “rich
details” in the American cases but nevertheless finds a similar pattern
of radicalization among U.S. citizens.198 The homegrown terrorists
studied by the NYPD were mostly middle class and well educated.199
192 Id. at 23.
193 The attacks and plots chronicled are the Madrid commuter train bombings of
March, 2004, the Hofstad terror cell in the Netherlands that beheaded Theo van
Gogh, the July 7th (7/7) London Tube bombings, a 2005 Australian terror plot
against critical infrastructure and government posts, and the so-called “Toronto 18,” a
group of Canadians who plotted to attack infrastructure and to behead Canadian
Prime Minister Stephen Harper. See id. at 21–53.
194 See id. at 23–28.
195 See id. at 24–27.
196 Id. at 24.
197 Most of the 7/7 bombers attended secular British schools and were not overtly
religious at all. Id. at 26. Nearly half of the Australians were not practicing Muslims
until eighteen months before the planned attacks, similar to the majority of the
Toronto 18, who were either not “particularly pious” or “had not practiced Islam until
they started the radicalization process.” Id. at 28 (citing Anti-Terror Sweep: The Accused,
NAT’L POST (Ontario), June 5, 2006, at A6).
198 See id. at 56. The three case studies are of the “Lackawana Six” from upstate
New York, the “Portland Seven” from Oregon, and several plotters from Northern
Virginia. All were arrested before they were able to progress significantly beyond the
planning stages for their attacks. Id. at 54–64.
199 See id. at 57–60.
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Among them were Mary Kay salesmen, Intel programmers, popular
high school students, and former soldiers and Marines, including a
decorated veteran of the Gulf War.200 Like their European counterparts, they had no reputation for overt regliosity.201 The time span of
their radicalization was similarly brief, but the American defendants
were less uniform in their commitment to waging violent jihad.202
How did these seemingly “normal” Americans espouse such a virulent and violent anti-American ideology? These haunting transformations underscore the challenge legislators, law enforcement, and
prosecutors face—confronting an enemy that transmogrifies disaffected youths into terrorists.203 Part of the change occurs via the
insidious influence of jihadi literature and media.204 Steven Emerson
notes that Salafist “guest lecturers” have come to conferences in the
United States for decades, and their rhetoric is in keeping with the
anti-Americanism of most Islamist theology.205
The universal consensus, though, is that the Internet is a primary
font of extremist proselytizing, whether on websites, chat rooms, or
message boards.206 The FBI describes the forging of domestic jihadi
cells as the “BOG” syndrome, for “Bunch of Guys.”207 It appears that
potential jihadis do not follow the route used by the Aryan Nation for
committing terror, namely the “Lone Wolf” approach, where connection to other members is curtailed to limit potential conspiracy liabil200 Id.
201 Id. One deceptive element of Salafism is its emphasis on dissimulation: it
encourages its adherents to lie about their beliefs in order to remain concealed and
thereby be more adept at waging jihad. While this is a possible explanation for the
general lack of lifelong religious fervor among some terrorists, most of the plotters in
the NYPD Report’s case studies did not have significant exposure to Salafist Islam
early enough for this theory to bear much scrutiny. See id. at 56–64 (chronicling lives
of the plotters); see also WRIGHT, supra note 44, at 132 (explaining the dissimulating
nature of Salafism).
202 See SILBER & BHATT, supra note 189, at 56–64.
203 That enemy being extremist ideology, not just the people it warps. While this
may seem like ontological hair-splitting, it should underscore our conceptualization
of the “War on Terror” as a struggle against both the individuals who create terror
and the extremism that creates terrorists.
204 See SILBER & BHATT, supra note 189, at 68.
205 STEVEN EMERSON, AMERICAN JIHAD 203–37 (2002) (detailing the lectures and
comments of various extremist speakers who espouse the “culture of qital”—combatdriven jihad).
206 See, e.g., SILBER & BHATT, supra note 189, at 68.
207 Josh Meyer, Small Groups Now a Large Threat in U.S., L.A. TIMES, Aug. 16, 2007,
at A1.
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ity.208 Indeed, the NYPD believes a key facet of homegrown terrorism
is the “‘echo chamber’” effect, where individuals propel and
encourage one another to radicalize and commit to jihad.209
While the process of radicalization is important to understand—
and potentially forestall210—it is the NYPD Report’s ultimate conclusion that jihadis search one another out that bears most on potential
legislative reform.211 Though it is incorrect to say that al Qaeda is
popular among Muslims the United States,212 it would be error to say
that the Salafist extremism does not have at least a potential foothold.213 And while the formation of small cells of radicalized men
208 In no way does this mean that the proposed statutes should not (or do not)
address Lone Wolf terrorism. See supra note 114 and accompanying text.
209 Meyer, supra note 207 (quoting Samuel J. Rascoff of the NYPD). The Internet
element of homegrown terrorism poses a dual threat to law enforcement. First, using
the Internet is a singular activity, even when it connects groups of people. In other
words, while I may be speaking to dozens or even hundreds of other people at once in
a chat room, I am also alone in my room. The surveillance and early-detection difficulties this poses are obvious. Second, it is foolish to discount the difference between
entering text and speaking words aloud. By eliminating the human interaction at the
early stages of radicalization, potential terrorists do not have the chance to hear themselves speak their beliefs until they have progressed much further down the trajectory
of radicalization. This unexplored sociological aspect of the echo chamber effect
adds to the dangers already enumerated by the FBI.
210 The study of homegrown terror will, perhaps, improve with the creation of the
Center of Excellence for the Study of Violent Radicalization and Homegrown Terrorism in the United States. See Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, H.R. 1955, 110th Cong. § 2 (2007) (proposing creation of the
Center). Though Orwellian in name, the Center will study the growth, development,
and nature of domestic radicalization. See id.
211 The NYPD Report emphasizes that an essential element of the radicalization
trajectory is that individuals “sought, found and bonded with other like-minded individuals. This loosely-knit but cohesive group of people forms a cluster—an alliance
based on social, psychological, ideological and ethnic commonalities.” SILBER &
BHATT, supra note 189, at 37. The relationship need not be in person, however. As
one conspirator stated, “I was able to meet them on the internet. We spoke numerous times over the phone and there was also a lot of literature available on the
internet I was able to see.” Id. at 70 (quoting Mohammed Junaid Babar).
212 See PEW RESEARCH CTR., MUSLIM AMERICANS 6 (2007) http://pewresearch.org/
assets/pdf/muslim-americans.pdf. Sixty-seven percent of American Muslims aged
thirty and older have a negative view of the organization. Id.
213 See id. Seven percent of Muslims ages eighteen to twenty-nine—a demographic that comprises the majority of the NYPD radicalization profile—have a
favorable opinion of al Qaeda and fifteen percent believe that suicide bombings are
justified. Id. These findings track the “Pew Global Attitude Project’s findings among
Muslims in Great Britain, France, Germany and Spain. In contrast, surveys among
Muslims in the Middle East and elsewhere in the world do not show greater tolerance
of suicide bombing among young people.” Id.
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may seem far removed from the creation of a domestic terror network, it in fact follows the paradigm of many terror groups around the
world.214
Three crucial lessons must be gleaned from the foregoing. First,
homegrown terrorism revolves around collective activity, normally in
groups of young men connected through a particular venue that
serves as an incubator for extremism.215 Second, the nascent jihadi is
supported and drawn further along the trajectory of radicalization by
groups that reinforce qital through Salafist propaganda and personal
instruction.216 Finally, these terrorists do not always go abroad, nor
do they always have connections to international terrorism.217
IV.
MATERIAL SUPPORT
TO
DOMESTIC TERROR
Armed with this knowledge, the deficiencies of current antiterrorism laws become clearer. Though direct support to anyone—whether
an alien or a United States person—who prepares or commits specified terrorist acts is illegal,218 there is no domestic material support
statute.219 Yet curbing material support to domestic terrorism is a key
factor in stymieing homegrown jihadis from “carry[ing] out their
grisly missions.”220 Although the fact that these “individuals are not
on the law enforcement radar” complicates the matter, it should not
preempt swift legislative action.221
214 See WRIGHT, supra note 44, at 50, 57 (describing the formation of al-Jihad, one
of al Qaeda’s precursor organizations led by Ayman al-Zawahiri, al Qaeda second-incommand); see also id. at 114–56 (outlining a similar formation of al Qaeda as a conglomerate of groups brought to Afghanistan during the war against the Soviets).
215 SILBER & BHATT, supra note 189, at 68. These incubators include nongovernmental organizations (NGOs) like the Holy Land Foundation, bookstores or cafes,
Muslim Student Associations, and, of course, Internet chat rooms. Id.
216 See id. at 72.
217 Most of the “Lackawanna Six” did not intend to go abroad. Id. at 62. Similarly,
foiled attempts to bomb the JFK terminal and Herald Square in New York did not
involve homegrown terrorists trained abroad, but rather young Americans radicalized
entirely within this country. Id. at 67–71. There is also a statutory difference between
getting literature or ideological guidance from an international source and proving a
sufficient legal connection to sustain a conviction under the relevant statutes.
218 18 U.S.C. § 2339A (2006).
219 See supra note 188 and accompanying text (pointing out the international element in current material support law).
220 Humanitarian Law Project II, 205 F.3d 1130, 1135 (9th Cir. 2000).
221 SILBER & BHATT, supra note 189, at 85. The report notes that radicalized persons “[i]n the early stages . . . are not participating in any kind of militant activity, yet
they are slowly building the mindset, intention and commitment to conduct jihad.”
Id.
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The current material support statutes are the obvious candidate
for reform. Congress repeatedly indicated its desire to see support for
terrorism eradicated in its prior amendments, some enacted as
recently as 2004.222 Despite the prevalence of §§ 2339B–C near the
top of federal terrorism indictments, there have been remarkably few
convictions since 2001.223 Of the 108 material support prosecutions
brought to trial by U.S. Attorneys in the six years following September
11, just nine resulted in a conviction.224 A partial explanation for this
surprising gap is the mutating and increasingly sophisticated terror
organizations the United States faces.
To demonstrate the potential gaps in the present laws, observe
the legal outcome in the following hypotheticals. Presume that a
group of seven men, aged eighteen to thirty, form a group called al
Gharib (“the Strangers”).225 Its members are all American citizens,
second-generation immigrants, have never been outside the country,
and have followed the NYPD “trajectory of radicalization” outlined
above. They individually purchase enough fertilizer to create several
small, but potent, pipe bombs and detonate them in the food courts
of several malls in Cleveland, Ohio.
Any person who knowingly provided aid to the group after this
attack would be guilty as an accessory after the fact, under the appropriate circumstances,226 but would have no liability for supporting terrorism under § 2339B, because al Gharib is not a foreign terrorist
organization.227 Moreover, there is no liability for aiding and abetting
222 Indeed, Congress drafted IRTPA as a specific response to the Ninth Circuit’s
Humanitarian Law Project III ruling, which would have made convictions more
difficult.
223 See supra notes 9–18 and accompanying text. The trend toward diminishing
material support prosecutions has not changed—between May 2007 and May 2008,
there were twenty percent fewer terrorism prosecutions initiated for the same period
the year before. Transactional Records Access Clearinghouse, Terrorism-Related
Financing Prosecutions for May 2008 (2008), http://trac.syr.edu/tracreports/bulletins/finterror/monthlymay08/fil/.
224 Liptak & Eaton, supra note 89.
225 At the point of formation, the members are only an “overt act” away from federal conspiracy liability. See 18 U.S.C. § 371 (2006). The difficulty in this situation is
not whether a conspiracy exists, but the lack of proof available to sustain a conviction.
For more on the limitations on the efficacy of conspiracy law as a tool to combat
terrorism, see generally Chesney, supra note 186 (exploring conspiracy law as a tool to
combat terrorism).
226 Provided that they had a purpose to support or assist the underlying offense.
See 18 U.S.C. § 2 (2006) (outlining aiding and abetting liability).
227 Consequently—and because the statute only applies to “financial institutions”—those who provide al-Gharib with support would not be subject to double
damage civil liability, either. See id. § 2339B(b) (2006). The supporter would not be
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unless the government can show specific purpose to further the terrorist acts.228 Consequently, while the foreign material support provisions have no purpose requirement, aiding and abetting liability
hinges on the government proving the most stringent purpose
requirement in the law.229 Federal conspiracy liability is similarly
unhelpful, because it requires proof of agreement among two or more
persons as well as an overt act in support of the conspiracy.230 Thus,
in our example, if one person provides support, or if he agrees with
no other person to provide support, there is no conspiracy.
Taking a step back, what becomes of those persons who provide
housing and money to al Gharib without knowing that the funds would
be used to commit a terrorist act, but with knowledge that the group
intended to commit such acts? Section 2339A prescribes a penalty
only for those who know that their support will be used for carrying
out certain acts,231 while § 2339B has the foreign group element.232
These are the same problems Congress addressed in the foreign context, and on which the Ninth Circuit ruled definitively in Humanitarian Law Project II—namely, that any support to terrorism frees up
resources that could be used elsewhere. This truth does not become
inapplicable simply because the underlying actors are American.
Presume that al Gharib is preparing another attack. Recognizing
the risk of soliciting direct contributions but in desperate need of
resources, they turn to a charitable organization (Community
Center), where they met some months earlier. This organization
openly supports al Gharib and frequently acts as its mouthpiece in the
press. The Community Center solicits money as well as PVC pipe and
fertilizer from the community—the same type used in the Cleveland
bombings. Donors to the Center face no § 2339A or § 2339B liability,
because they are a step of recursion away from al Gharib, and again,
the statutes do not cover simple attacks like pipe bombs. Similarly,
they face no § 2339C liability, because they are not the clearinghouse
guilty of “harboring a terrorist” under § 2339 because detonating a pipe bomb is not
one of the enumerated offenses in that statute. See id. § 2339A(a).
228 Criminal liability attaches to any person who aids and abets a criminal act. Id.
§ 2. Nevertheless, aiding and abetting, as understood in the Code, requires specific
purpose to further the underlying criminal activity. See Nye & Nissen Corp. v. United
States, 336 U.S. 613, 620 (1949) (noting that aiding and abetting requires that the
defendant “consciously share[] in any criminal act”).
229 This result is absurd in light of Congress’ elimination of a purpose requirement in the IRTPA.
230 See 18 U.S.C. § 371 (imposing liability on conspirators only after agreement
and an act in furtherance of the conspiracy).
231 Id. § 2339A.
232 Id. § 2339B.
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for “funds,” or because they provided physical goods. Assuming that
the Community Center did not provide funds, it escapes § 2339C liability for the same reason.
Changing the material support statutes would eliminate these
impermissible gaps in the law. While no statutory regime is perfect,
Congress has the opportunity to amend one with significant loopholes—loopholes that defeat the purposes of legislation like AEDPA
and IRTPA.
A. Lessons Learned Abroad
Amending material support laws to punish recklessness and to
include domestic terrorism is not without precedent. American allies
in the War on Terror have enacted legislation permitting them to regulate reckless contributions to, and support for, terrorists. Contextualizing the proposed changes reveals that they are not outside the
mainstream of international responses to terror—if anything, they
would be more restrictive for prosecutions and law enforcement than
most antiterror regimes.233
The United Kingdom arguably has the most experience in
antiterrorism among Western states. From the mid-nineteenth century, the British faced the escalating terrorism of the Fenian Brotherhood and its successors, the Irish Republican Army (IRA).234 The
British addressed the struggle with Irish nationalists as an insurrection
until the late twentieth century, well after the formation of the Republic of Ireland as an independent entity.235 As a result, even in 1999,
most antiterror laws in the United Kingdom focused on limiting support for the IRA.236
Since 2000, the British have drastically revised their counterterrorism laws. The Terrorism Act 2000 created a material support
233 Obviously, other nations are not bound by constitutional provisions like the
Bill of Rights. The comparison between American and international antiterror laws
should be understood as an comparative exercise, not an argument for the more
strident laws found abroad.
234 For an intriguing overview of the Irish independence movement and the
“Troubles” in Northern Ireland, as well as British responses, see generally TIM PAT
COOGAN, THE TROUBLES (2002).
235 Id. at 134 (noting that the British approach to the IRA was literally a declared
war and that captured members “were more likely to face a rope than a cell”).
236 Indeed, to this day, any group in the Republic of Ireland that contains the
name “Irish Republican Army” is an ipso facto terrorist organization—a holdover
from the British dominion in Ireland. Offences Against the State Act, 1939 (Act No.
13/1939) (Ir.) available at www.irishstatutebook.ie/ZZA13Y1939.html (last visited
October 10, 2008).
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scheme that forbade any person who “invites . . . [provides] . . . [or]
receives money or other property, and intends that it should be used,
or has reasonable cause to suspect that it may be used, for the purposes of terrorism.”237 The language of “reasonable cause to suspect”
tracks the concept of negligence—a state of mind requirement more
easily satisfied than recklessness. Just two months after September 11,
Parliament passed the Anti-terrorism, Crime and Security Act 2001,238
which broadened police powers and lengthened detention periods for
potential terrorists, but left the material support provisions
untouched.239 After the London bombings on July 7, 2005, the Parliament acted again, passing the Terrorism Act 2006 and, again, the negligence provision remained.240 Despite widespread changes to the
general tenor of the counterterrorism laws, there was apparently no
need to revise the negligence standard.241
Other common law nations have grappled with material support
liability as well. Australia has adopted the British standard, implementing a sliding scale of material support liability.242 Under Australian law, any person who “intentionally provides to an organisation
support or resources” and knows that the organization engages in terrorism is subject to twenty-five years in prison,243 while the penalty for
a reckless contribution made to a terror group is fifteen years.244
Canada, on the other hand, employs a statute similar to the present
American one, criminalizing support only when given with knowledge
of terrorist activities.245
237 Terrorism Act, 2000, c. 11, § 15–15(3)(b).
238 Anti-Terrorism, Crime, and Security Act, 2001, c. 24.
239 Id. §§ 89–101.
240 See Terrorism Act, 2006, c. 11 (leaving the negligent liability provisions
unchanged).
241 Parliament has refused to implement other counterterrorism policies because
of perceived impact on civil liberties or improper mens rea elements. Indeed, it
refused to enact the Council of Europe Convention on the Prevention of Terrorism
(CECPT), which mandated the creation of a new crime of “public provocation to
commit a terrorist offence.” JOINT COMM. ON HUMAN RIGHTS, THE COUNCIL OF
EUROPE CONVENTION ON THE PREVENTION OF TERRORISM 9–17 (2006–7), http://www.
publications.parliament.uk/pa/jt200607/jtselect/jtrights/26/26.pdf. While other
provisions of the statute impermissibly limited civil liberties and created a “chilling
effect,” the Joint Committee on Human Rights determined that “subjective recklessness” was not problematic. Id.
242 See Criminal Code Act, 1995, c. 5, § 102.7.
243 Id. § 102.7(1).
244 Id. § 102.7(2).
245 See Criminal Code of Canada, R.S.C., ch. C-41, § 83.02 (2001) (“Every one who,
directly or indirectly, wilfully and without lawful justification or excuse, provides or
collects property intending that it be used or knowing that it will be used [for terror-
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Though Canada—among other states—requires knowledge of
terrorist activities, it is among the vast majority of Western states that
do not differentiate between domestic and international terrorism.246
Much like the Terrorism Acts 2000 and 2006, the criminal codes of
France, Germany, and other European Union member states categorize a terrorist simply as a person who uses fear “designed to influence
the government or to intimidate the public or a section of the public . . . [where] the use or threat [of action] is made for the purpose of
advancing a political, religious or ideological cause.”247 By not differentiating between domestic and foreign terrorism, these states appropriately view terrorism as a transnational phenomenon, one that can
arise from within a state’s own borders.248
CONCLUSION
Attacking terrorism at its financial roots must continue to be a
priority of the United States’ counterterrorism regime. The material
support statutes offer prosecutors a potent tool in this effort, but their
potential remains unnecessarily circumscribed by their limited scope.
Requiring proof of knowledge hampers effective action against
defendants who hide behind claims of ignorance. A reckless mens rea
requirement for material support promotes care in contributions and
eliminates the shibboleth defense of lack of knowledge.
ism] . . . is guilty of an indictable offence and is liable to imprisonment for a term of
not more than 10 years.”).
246 See id. § 83.01 (establishing uniform treatment for terrorism committed by
both Canadians and aliens).
247 Terrorism Act, 2000, c. 11, § 1(1)(b)–(c) (Eng.). “Purpose” when used in this
context refers to the actual commission of a terrorist act, not material support. As
such, it is substantively similar to the American definition of terrorism as “violent acts
or acts dangerous to human life that . . . appear to be intended—(i) to intimidate or
coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping.” 18 U.S.C. § 2331 (2006).
248 Notably, the United States does not distinguish between foreign and domestic
terrorism in its intelligence gathering. See 50 U.S.C. § 401a (2000 & Supp. V 2005)
(defining “national intelligence” as referring “to all intelligence, regardless of the
source from which derived and including information gathered within or outside the
United States” which poses a threat to the country). Moreover, elements of Chapter
113B of Title 18 of the U.S. Code (“Terrorism”) make recklessness the mens rea for
offenses. See, e.g., 18 U.S.C. § 2332d (2006) (prescribing penalties for anyone who
engages in financial transactions with a state that the accused “know[s] or [has] reasonable cause to know” is designated as a supporter of terrorism (emphasis added)). It
makes little sense for our intelligence-gathering and financial offense laws to be indiscriminate but prosecutions for material support to be so limited.
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In addition, the statutes should reflect the understanding of
extremism as a phenomenon that may develop in the United States.
At present, there is no material support liability for those who would
underwrite homegrown terror. If the last seven years of counterterrorism work has proven anything, it is the adaptability and resilience
of terrorists. As our legislative responses to terror financing grew
more sophisticated, so did these money networks. Now, rather than
making direct contributions to Hamas or their proxies, terror groups
funnel their support through convoluted channels that insulate
donors from criminal liability. There is no reason to believe that the
organizational aspect of terror would be any less adaptable. Without
ready resort to criminal prosecution, the United States would have far
less leverage against domestic donors and fellow-travelers. By amending the material support laws to include domestic terrorism—and
bringing them in line with international practice—our antiterrorism
efforts can be of greater effect and use against an emerging threat.